State capture terms 'too broad', says Madonsela

Former Public Protector Thuli Madonsela. (Lulama Zenzile, Netwerk24)
Former Public Protector Thuli Madonsela. (Lulama Zenzile, Netwerk24)

Cape Town – Former Public Protector Thuli Madonsela, whose investigation into state capture led to the establishment of the Zondo Commission, says its terms of reference are too broad and that it would take "a lifetime" for one commission to probe all government corruption.

But Madonsela has faith that Deputy Chief Justice Raymond Zondo, who heads up the commission, will determine the "purpose" thereof and align it with her probe into the Guptas and President Jacob Zuma.

Zuma released the terms of reference for the Zondo Commission on Thursday. Most of the topics of investigation concern Zuma and his family friends, the Guptas, but two sections speak to all corruption in the awarding of tenders by state-owned enterprises and government departments.

The devil is in the detail

"If you take this interpretation literally, if you are asking this judge to investigate all corruption in state affairs, that would take a lifetime for one commission," said Madonsela.

"I wish the drafting was better. I think the drafting (of the terms) is confusing. On the one hand it is too broad, and on the other hand too narrow. The devil is in the detail," said the former Public Protector, who now teaches law at Stellenbosch University.

Zuma appointed Zondo after increasing pressure from new ANC president Cyril Ramaphosa to act in accordance with the party's resolution in support of a state capture inquiry.

Madonsela available to 'help in the initial stages'

In response to the terms, Madonsela says her report was "much broader in terms of the president's culpability". She is surprised that the section dealing with the influence of Cabinet appointments only mentions jobs allegedly being offered to former deputy minister Mcebisi Jonas and former ANC MP Vytjie Mentor, and not the removal of former finance minister Nhlanhla Nene. 

Also missing from the terms of reference are Zuma's conflicts of interest and his failure to investigate or act when it was reported by Jonas and Mentor that they were offered Cabinet positions by the Guptas.

READ: Commission may only investigate Zuptas, says Madonsela

"The whole investigation is now cast as a criminal investigation, but it should be an administrative investigation. Improper conduct constitutes a variety of things – some are criminal, some maladministration, some irregularity."

The commission is officially called the "inquiry to inquire into the allegations of state capture, corruption and fraud in the public sector, including organs of state". 

But, says Madonsela, Zondo is a "senior Constitutional Court judge" who will not look at certain aspects of the terms in isolation and will determine the purpose of the commission.

Asked whether she would play a role in the commission, Madonsela said she "could be of help in the initial stages if the DCJ (Zondo) wanted to ask questions about anything".

"I would give that information".

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